Allowed

Uttam Singh v. State of U.P. and 2 Ors.

Allahabad HC10 Sept 2018SPLAD/264/2018

Case brief

AI extract

What is this about?

The Supreme Court allowed an appeal by a son seeking compassionate appointment for his late father. The Court held that the father, appointed at par with regular recruits against a regular vacancy, qualified as a 'Government Servant' under the 1974 Rules, distinguishing him from casual labourers in prior precedent, and directed the respondent to consider the application within three months.

What did the court decide?

The impugned judgment set aside and writ petition allowed. Directions issued to grant appointment on compassionate grounds treating the father as a Government Servant.

Uttam Singh Vs State of U.P. and 2 Ors. — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 21

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Case :- SPECIAL APPEAL DEFECTIVE No. - 264 of 2018

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Appellant :- Uttam Singh Respondent :- State Of U.P. And 2 Ors Counsel for Appellant :- Devi Prasad Mishra Counsel for Respondent :- C.S.C.

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Hon'ble Govind Mathur,J. Hon'ble Chandra Dhari Singh,J.

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This appeal is barred by limitation from 242 days.

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Having considered the facts stated in the application seeking condonation of delay, we are satisfied that the appellant had justifiable reason to state that for a bonafide reason, he was prevented from filing the appeal in time, accordingly, the delay in filing the appeal is condoned.

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To examine correctness of the judgment dated 3^th August, 2016 passed by learned Single Bench in Writ- A No. 35631 of 2016 this appeal is preferred.

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By the judgment impugned, learned Single Bench while dismissing the petition for writ preferred by the appellant-petitioner arrived at the conclusion that being a Part Time Tube Well Operator, the father of the appellant-petitioner was not a Government Servant, the appellant-petitioner is not entitled to have appointment on compassionate grounds as per provisions of the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 (hereinafter referred to as “Rule of 1974”).

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The factual matrix necessary to be noticed for adjudication of the instant appeal is that the respondents initiated a process of selection for appointment as Tube Well Operators somewhere in the year 1996-97. The father of the petitioner faced the process of selection but appointment was not accorded to him being not a

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resident of the command area of the tube well concerned. Aggrieved by the same, he along with two other persons preferred a petition for writ i.e. Writ Petition No. 18585 of 1993 ( Vinod Kumar Pandey and Others Vs. State of Uttar Pradesh and Another ) . In the petition aforesaid, father of the appellant was petitioner no. 3.

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The writ Court under the judgment dated July 16, 1997 accepted the petition for writ and while doing so recorded its finding relating to the petitioner no. 3 as under:-

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“ In respect of petitioner no. 3 the only defence taken by the respondents is that the said petitioner is resident of outside the command area of the tube-well concerned but the document at Annexure- 1 to the writ petition indicates that the said petitioner no. 3 is the resident of the same village wherein the tube well is situated. No material is available disputing the said document or the contents thereof. In the aforesaid circumstances, I do not find any ground for refusing the claim of the petitioner no. 3 for employment.

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The writ petition, therefore, is allowed to the extant that the respondents are to pass appropriate order in respect of the claim of the petitioner no. 3 for appointment in view of his selection as the only ground being found not tenable. Such decision is to be taken by the appropriate authority within a period of six weeks from the date of production of certified copy of this order.”

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In pursuance of the directions given, the Executive Engineer Tube Well Division First, Allahabad vide order dated 29^th January, 2003 offered an appointment to father of the appellant-petitioner in pay-scale of Rs. 3050 - 4590 as Part Time Tube Well Operator, at par with Regular Tube Well Operator. In pursuance to the order aforesaid, father of the appellant-petitioner joined service on 3^rd February, 2003 in the office of Executive Engineer Tube Well Division First, Allahabad. While serving on the post aforesaid, he died on 19^th March, 2016.

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The appellant-petitioner considering himself as a ward of Government Servant, submitted an application to be considered for

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appointment on compassionate grounds as per provisions of the Rules of 1974. The claim of the appellant-petitioner was rejected by the respondents on the count that his father being in Part Time Employment was not a “Government Servant” as defined under Rule 2 (a) of the Rules of 1974.

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To question correctness of the decision taken by the respondents, the appellant preferred a petition for writ that came to be dismissed under the judgment impugned. Learned Single Bench by going through the contents and recitals of the order of appointment dated 29^th January, 2003 held that father of the appellant-petitioner being a Part Time Tube Well Operator was rightly not treated as a Government Servant under the Rules of 1974. Learned Single Bench while doing so also relied upon a full Bench judgment of this Court in the case of Pawan Kumar Yadav Vs. State of Uttar Pradesh and Others reported in 2010 (8) ADJ 664.

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In the case aforesaid, a full Bench of this Court held that a daily wager or a work charge employee employed in connection with the affairs of Uttar Pradesh, who is not holding any post whether substantive or temporary, and is not appointed against any regular vacancy, even if he was working for more than 3 years, is not a “Government Servant” within the meaning of Rule 2 (a) of the Rules of 1974, and thus his dependants are not entitled to have appointment on compassionate grounds under the Rules of 1974.

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In appeal, the argument advanced by learned counsel appearing on behalf of the appellant is that learned Single Bench failed to appreciate that the appointment of the appellant-petitioner's father though was termed as “Part Time Tube Well Operator” but was always treated as a regular appointee.

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Per-contra, as per learned Standing Counsel, a plain reading of

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the order of appointment dated 29^th January, 2003 is sufficient enough to arrive at the conclusion that father of the appellant-petitioner was not a “Government Servant” as defined under Rule 2 (a) of the Rules of 1974.

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Heard learned counsels and considered their rival submissions.

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The Rules of 1974 were framed by the Governor of Uttar Pradesh in exercise of the powers conferred under proviso to Article 309 of the Constitution of India and as per Rule 5, in case a Government Servant dies in harness and his / her spouse is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purpose, be given a suitable employment in Government Service.

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The term “Government Servant” has been defined under clause (a) of Rule 2 of the Rules of 1974 and that reads as under:-

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(a) “Government servant” means a Government servant employed in connection with the affairs of Uttar Pradesh who--

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(i) was permanent in such employment; or (ii) though temporary had been regularly appointed in such employment; or

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(iii) though not regularly appointed, had put in three years continuous service in regular vacancy in such employment.

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Explanation-- “Regularly appointed” means appointed in accordance with the procedure laid down for recruitment to the post of service, as the case may be;”

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As per clause (b) of Rule 2 of the Rules of 1974 “deceased Government servant” means a Government servant who dies while in service.” It is also pertinent to notice that the explanation given under Rule 2 (a) of the Rules of 1974 further makes it clear that if

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appointment is given by adopting the procedure laid down for recruitment then the same shall be treated as a regular appointment.

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Precisely, the issue involved in this appeal is that whether father of the present appellant-petitioner falls within the definition of “Government Servant” as given under Rule 2 (a) of the Rules of 1974. For the purpose we are required to examine the mode of appointment adopted while employing father of the appellant-petitioner, nature of the appointment given and the tenure of his service.

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As already stated, the appointment under the order dated 29^th January, 2003 was accorded to the appellant-petitioner in the payscale of Rs. 3050 - 4590. The appointment under the order aforesaid though is termed as on the post of “Part Time Tube Well Operator” but that was at par to the regular Tube Well Operator. The order of appointment in quite unambiquous terms states that “Sri Jai Karan Singh S/o Sri Ram Sajiwan, resident of Village and Post Chial, District- Kaushambi is ordered to be appointed in the pay-scale of Rs. 3050-75-3950-90-4550 at par with the service condition relating to Regular Tube Well Operators as Part Time Tube Well Operators.” Under the order aforesaid, the appointee was also directed to furnish High School Examination Certificate, a Medical Certificate issued by the Chief Medical and Health Officer and Character Certificate issued by two Gazetted Officers. A certificate of having single spouse in the form of declaration was also demanded. On satisfying all these conditions, the appointee was permitted to join the duties. It is also pertinent to note that a complete process of selection was conducted by the employer and thereafter at the first instance appointment was denied to him on the count that he was not a resident of the command area of tube well concerned. The ground aforesaid being turned down by the writ Court, the appointment was accorded under the order dated 29^th January, 2003. At the cost of repetition, it would be appropriate to

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state that from the very first day, appointment to father of the appellant-petitioner was given in the pay-scale applicable for Regular Tube Well Operators.

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If all these facts be scaled at the standards of the definition of “Government Servant” given under Rule 2 (a) of the Rules of 1974, we are having no hesitation in holding that the appellant-petitioner's father is a Government Servant as per Rules of 1974. While giving appointment to father of the appellant-petitioner, a regular procedure was adopted. In the order of appointment itself, the respondents in quite unambiguous terms stated that the appointment shall be as Part Time Tube Well Operator but at par with service conditions relating to Regular Time Tube Well Operator. This fact is sufficient to establish that the appointment was against a regular vacancy and in the backdrop from the inception regular pay-scale was allowed to him. The appointment of father of the appellant-petitioner, for all purposes, satisfies the requirements of Rule 2 (a) of the Rules of 1974 and, as such, he was definitely a Government Servant. Mere prefixing of the term “Part Time” will not change the nature of appointment that otherwise satisfies the parameters of a “Government Servant”.

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The Full Bench judgment rendered in the case of Pawan Kumar Yadav Vs. State of Uttar Pradesh and Others (supra) , in our considered opinion is having no application in the instant matter being related to the persons employed on work charge basis as casual labourers. Instead one matter where appointment was given in regular pay-scale after adhering a regular process for appointment. The appointment order itself mentions that the appellant-petitioner shall be treated at par with regularly employed Tube Well Operator.

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In view of whatever stated above, we are of considered opinion that the respondents erred while denying appointment to the appellantpetitioner by not treating his father a “Government Servant” under

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Rule 2 (a) of the Rules of 1974. Learned Single Bench also failed to appreciate the true nature of the appointment of the father of the appellant-petitioner under the order dated 29^th January, 2003.

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For the reasons given above, this appeal deserves acceptance, accordingly, the same is allowed. The judgment impugned dated 3^th August, 2016 passed by learned Single Bench is set aside. The writ petition preferred by the appellant-petitioner is allowed. The respondents are directed to consider case of the appellant-petitioner for grant of appointment on compassionate grounds by treating his father as a Government Servant as per Rule 2 (a) of the Rules of 1974. The consideration in terms of this order is required to be made within a period of three months from today.

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No order to cost.

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Order Date :- 10.9.2018

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Rameez

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(Chandra Dhari Singh,J.) (Govind Mathur,J.)

Uttam Singh v. State of U.P. and 2 Ors.

Case brief

What is this about?

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Uttam Singh v. State of U.P. and 2 Ors.

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